Lela M.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.

Equal Employment Opportunity Commission

Dec 20, 2018

0120171973 (E.E.O.C. Dec. 20, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Lela M.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.

Appeal No. 0120171973

Hearing No. 531-2012-00279X

Agency No. HHS-NIH-0010-2012

DECISION

On May 18, 2017, Complainant submitted correspondence to the Commission alleging that the
Agency was not in compliance with the Agency’s final action fully implementing the decision and
relief ordered by an EEOC Administrative Judge (AJ) following a finding that the Agency had
violated Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et
seq.

BACKGROUND

Prior to the filing of this complaint, Complainant worked as a Senior Clinical Research Pharmacist
at the Agency’s work facility in Bethesda, Maryland.

On December 7, 2011, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her in reprisal for her prior protected EEO activity when her former
supervisor made statements in response to an employment reference request which were allegedly
not neutral as required by the terms of a settlement agreement.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and
the AJ held a hearing on July 29, 2013, and issued a decision on October 25, 2016.

The AJ found that the Agency had subjected Complainant to reprisal. The AJ ordered the
following relief:

1. Complainant shall be placed in the position of Regulatory Health Coordinator in the
Division of Drug Oncology, CDER, FDA, or a comparable position.

2. Complainant shall be awarded $15,000 in non-pecuniary compensatory damages.

3. Complainant shall be paid any back pay plus interest and any fringe benefits from June
2010 to the present between the difference from what she did earn during this time frame
and what she would have earned had she been selected for the position in question.

The AJ also provided for the award of attorney’s fees and costs with the direction that Complainant
submit a verified statement of fees and costs accompanied by an affidavit executed by the attorney
of record. The AJ’s decision informed Complainant that “[i]f the Agency has not issued its final
order within forty (40) calendar days of its receipt of the order entering judgment and this decision,
the Complainant may file an appeal to the Commission directly from this decision.”

In a subsequent Decision on Attorney’s Fees dated March 2, 2017, the AJ awarded Complainant
$26,291 in attorney’s fees plus $43.90 in costs. On March 3, 2017, the AJ issued an Order Entering
Judgment in Complainant’s favor.

When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the
AJ’s decision finding that Complainant proved that the Agency subjected her to discrimination as
alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).

In the instant appeal, Complainant contends that the Agency has failed to comply with the AJ’s
Order awarding the aforementioned remedies. Complainant claims that the Agency has not
provided any of these remedies. Complainant notes that the Agency failed to timely appeal the
Order or issue a final order.

The Commission's regulations provide that final action that has not been the subject of an appeal
or civil action shall be binding on the Agency. 29 C.F.R. § 1614.504(a). If Complainant believes
that the Agency has failed to comply with the terms of a decision, she shall notify the EEO
Director, in writing, of the alleged noncompliance within 30 days of when Complainant knew or
should have known of the alleged noncompliance. Id. The Agency shall resolve the matter and
respond to the Complainant, in writing. 29 C.F.R. § 1614.504(b). If Complainant is not satisfied
with the Agency's attempt to resolve the matter, the Complainant may appeal to the Commission
for a determination as to whether the Agency has complied with its decision. Id.
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Complainant may file such an appeal 35 days after he or she has served the Agency with the
allegations of noncompliance, but must file an appeal within 30 days of his or her receipt of an
Agency's determination. Id. If the Commission determines that the Agency is not in compliance
with its decision, and the noncompliance is not attributable to acts or conduct of Complainant, it
may order such compliance with the decision. 29 C.F.R. § 1614.504(c).

In this case, there is no evidence that Complainant properly notified the Agency of her allegations
of non-compliance. Consequently, Complainant's direct appeal of non-compliance allegations was
premature. However, the Commission notified the Agency of Complainant's appeal, which
provided the Agency with constructive notice of Complainant's non-compliance allegations.
Nevertheless, the Agency has not submitted any arguments addressing Complainant's non-
compliance allegations. Further, if the Agency was rejecting the AJ’s finding and remedies
ordered, there is no indication in Commission records that the Agency filed an appeal as required
by 29 C.F.R. § 1614.110(a).

In the interest of ensuring compliance with Commission orders and the efficient processing of
these allegations, we remand this matter to the Agency so that it can demonstrate its compliance
with the final order.

Accordingly, we REMAND the matter to the Agency to provide the remedies awarded by the AJ
in accordance with this decision and the ORDER below.

ORDER
The Agency, to the extent it has not already done so, is ordered to take the following actions within
thirty (30) calendar days of the date this decision becomes final:
1. The Agency shall pay Complainant compensatory damages in the amount of
$15,000.00.
2. Complainant shall be placed in the position of Regulatory Health Coordinator in the
Division of Drug Oncology, CDER, FDA, or a comparable position.
3. Complainant shall be paid any back pay plus interest and any fringe benefits from June
2010 to the present between the difference from what she did earn during this time
frame and what she would have earned had she been selected for the position in
question.
4. The Agency shall pay Complainant $26,291.00 in attorney’s fees and $43.90 in costs.
5. The Agency shall post a notice in accordance with the paragraph below.
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
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Further, the report must include supporting documentation of the Agency's calculation of back pay
and other benefits due Complainant, including evidence that the corrective action has been
implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Bethesda, Maryland facility copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized representative, shall be
posted both in hard copy and electronic format by the Agency within 30 calendar days of the
date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous
places, including all places where notices to employees are customarily posted. The Agency shall
take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other
material. The original signed notice is to be submitted to the Compliance Officer as directed in
the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days
of the expiration of the posting period. The report must be in digital format, and must be submitted
via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).

ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)),
she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney
shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity
Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this
decision was issued. The Agency shall then process the claim for attorney's fees in accordance
with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g).
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Alternatively, the Complainant has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R.
§§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If
the Complainant files a civil action, the administrative processing of the complaint, including
any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in the complaint the person
who is the official Agency head or department head, identifying that person by his or her full name
and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or
“department” means the national organization, and not the local office, facility or department in
which you work. Filing a civil action will terminate the administrative processing of your
complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

December 20, 2018
Date